The first appellate court should not re-interpret evidence without proper grounds, and the defendant's challenge to an exparte decree should be limited to the legality of the trial court decree based on the plaintiff's pleadings and evidence.

JUDGMENT

(Prayer: Second Appeal is filed under Section 100 of C.P.C, to set aside the judgment and decree dated 13.08.2018 passed in A.S.No.35 of 2014 on the file of the Principal District Court, Kanyakumari at Nagercoil reversing the judgment and decree dated 20.07.2012 passed in O.S.No.115 of 2011 on the file of the Subordinate Court, Padmanabhapuram.)

The plaintiff is the appellant.

2. The plaintiff has filed O.S.No.115 of 2011 before the Subordinate Court, Padmanabhapuram for demarcation and fixation of boundaries of the plaint schedule property as per the plaintiff's document, re-survey plan and through an Advocate Commissioner appointed by the Court with the help of Taluk Surveyor. The plaintiff further prayed for recovery of encroached portions from the defendants 1 and 2. The plaintiff further prayed for a decree for permanent injunction restraining the defendants 1 and 2 from disturbing the peaceful possession and enjoyment of the plaintiff over the suit schedule property.

3. The defendants 1 and 2 who are the contesting parties did not file a written statement and remained exparte.

4. Ten documents were filed on the side of the plaintiff. The power agent of the plaintiff was examined as PW1. An Advocate commissioner was appointed and he filed his report and plan which are marked as Exhibits C1 and C2. After the said exercise, the trial Court decreed the suit as prayed for. The first defendant who had remained exparte before the trial Court had filed A.S.No.35 of 2014 before the Principal District Court, Kanyakumari at Nagercoil. The appeal was allowed by the learned District Judge and the suit was dismissed. As against the same, the present second appeal has been filed by the plaintiff.

5. The plaintiff has contended that the suit schedule property along with other properties were originally owned by one Padma Murugesan by way of sale deeds under Exhibits A2 to A4. The said Padma Murugesan has executed a power deed under Exhibit A6. The said power agent has executed a sale deed in favour of the plaintiff for 1 acre and 6 cents under Exhibit A7 on 14.07.2009. Since the plaintiff is residing far away from the plaint schedule property, he has appointed one D.Suresh as his power agent under Exhibit A1.

6. The plaintiff had further contended that in the southern side of the plaint schedule property, the properties of the defendants 1 and 2 are located. Though there is a bund and fence in between the properties of the plaintiff and the defendants, in the absence of the plaintiff, the defendants 1 and 2 have demolished the said bund and fence.

7. The plaintiff gave an application to Tahsildar to measure the plaint schedule property as per the document and re-survey plan and for fixing the boundary between the plaint schedule property and the defendants' property. Though such an exercise was carried out, the defendants objected for laying of survey stones. According to the plaintiff, the first defendant has encroached 15 ½ cents and the second defendant has encroached 10 ½ cents from the plaintiff's property. Hence, the plaintiff prayed for demarcation of his southern boundary and for recovery of encroached portions from the defendants 1 and 2.

8. The second defendant filed a written statement. However, the plaintiff filed a memo before the Court that the issue between the plaintiff and the second defendant has been settled out of Court and hence, the suit as against the second defendant may be dismissed. The said memo was recorded and the suit was dismissed against the second defendant and he was removed from array of parties in the suit.

9. The first defendant has not filed any written statement and remained exparte.

10. Before the trial Court, the power agent was examined as PW1. Through him, exhibits A1 to A10 documents were marked. An Advocate Commissioner was appointed. He filed his report and plan under Exhibits C1 and C2. The trial court relied upon the deposition of PW1 and the Commissioner's report in which the encroached por